Photo: archive photo
The BC government says it intends to appeal a court decision overturning a recently enacted regulation that limits the amount that can be reimbursed to a plaintiff for expert testimony and other costs arising from claims of motor vehicle accidents.
The regulation limits the reimbursement of fees, such as those charged by experts, to 6% of the total damages awarded by the court or the amount agreed in a settlement.
Therefore, if someone received $ 10,000 for a personal injury claim, the ICBC, the government’s insurance monopoly, would only have to reimburse up to $ 600 in those rates (for things like medical opinions or rebuilding reports). accidents). Any costs in excess of this amount will be borne by the claimant, basically consuming the award for the damages he has received.
The regulation was introduced as part of a set of legislative changes to reduce government costs of litigating motor vehicle claims and thus reduce the cost of car insurance through the ICBC.
“We have made it clear that costly and lengthy legal battles did not work for British Colombians injured in car accidents. That is why we have made changes aimed at reducing disproportionate expert reports, litigation costs and delays. We are appealing. the court’s recent decision and we will not comment further at this time, “Public Safety Minister and Attorney General Mike Farnworth told Glacier Media in an emailed statement through a spokesman.
The case was filed by Thi Sau Le, a 77-year-old retiree who claims to have been hit by three vehicles on January 3, 2020. Le’s lawyers estimate that due to the number of different injuries involved, experts in up to Eight different medical or therapeutic specialties will be needed to prove your damages, at a cost in excess of $ 50,000 and therefore “significantly exceeding” 6% of any damages.
As such, Le and the BC Litigation Lawyers Association filed a petition in the BC Supreme Court alleging that the regulation was incorrect for both administrative and constitutional reasons.
The Honorable Judge Lynn Smith finally held, in a judgment of July 8, that the regulation was inconsistent with the enabling statute, the Evidence Act, and the Constitutional Act and “therefore has no effect.” .
Smith found the case to be similar to when the government tried to limit each party in a motor vehicle action to three damage experts, with only one report from each expert. This regulation was found to limit the court’s ability to hear evidence needed to make a decision, Smith noted, adding that the 6% rule was a direct response to the fact that the government could no longer limit experts.
When evaluating the regulation for administrative reasons, Smith noted that the regulatory statute gives the court the discretion to allow additional experts otherwise failure would cause serious harm. However, the regulation limiting the refund to 6% does not provide for this discretion and is considered incompatible with the Evidence Act.
And, the regulation “creates a financial barrier or a disincentive, and therefore possible additional harm, to litigants asking the court to exercise that discretion,” Smith wrote.
Smith found more inconsistencies in noting that the regulation also denies reimbursement of the cost of attending a trial liability expert.
For constitutional reasons, Smith noted that the petitioners argued that the regulation prevented access to justice because it would limit a person’s ability to seek expert opinions because of the costs, an issue the government freely admits as expected effect, Smith noted.
“Some plaintiffs will not be able to gather all the evidence necessary to prove all aspects of their case without sacrificing other reasonable expenses or necessary parts of their compensatory damages,” Smith wrote. “Others may have evidence in the form of necessary expert reports, but will not be able to proceed with the trial because of the additional costs and risks associated with the statement of these experts.”
Le and the association argued, Smith wrote, “that the impugned regulation empties this judiciary by creating situations where the evidence the court requires cannot be realistically presented because of the costs and risks imposed on the individual plaintiff.”
Smith agreed.
And so, like the regulation limiting experts, Smith ruled that regulating putting a limit on reimbursement “compromises and dilutes the role of the court and invades a basic area of the court’s jurisdiction to control its process.”
With the government’s decision to appeal to the BC Court of Appeal, this is now one of three pending court cases related to the government’s efforts to reduce litigation costs for ICBC. The others include challenging a damage limit (compensation) and using administrative courts for claims. The latter case has been won by the government in the BC Court of Appeal, but the association is seeking permission to appeal to the Supreme Court of Canada.